Markwardt v. State, Water Resources Bd.

• Decision Date: 13 May 1977
• Docket Number: No. 46913,46913
• Citation: Markwardt v. State, Water Resources Bd., 254 N.W.2d 371 (Minn. 1977)
• Parties: Donald H. MARKWARDT et al., petitioners, Appellants, v. STATE of Minnesota, WATER RESOURCES BOARD, Respondent, Petitioners in the Matter of the Establishment of the Clearwater River Watershed District, Respondents.
• Court: Minnesota Supreme Court

Page 371

254 N.W.2d 371

Donald H. MARKWARDT et al., petitioners, Appellants, v. STATE of Minnesota, WATER RESOURCES BOARD, Respondent Petitioners in the Matter of the Establishment of the Clearwater River Watershed District Respondents.

No. 46913.

Supreme Court of Minnesota.

May 13, 1977.

Syllabus by the Court

1. The Minnesota Water Resources Board did not exceed its statutory authority when substantial evidence supports the creation of a watershed district for the purposes set forth in Minn.St. 112.36.

2. Minn.St. 112.801 provides aggrieved parties an effective procedure for judicial review of the amount of benefits determined or the amount of damages allowed, and the creation of a watershed district in and of itself creates no justiciable controversy with respect to such property rights.

3-4. The scope of review of the action of an administrative agency is governed by Minn.St. 15.0425, and the court will not interfere with the conclusions of such agency unless it appears that the agency has violated one or more of the provisions of the statute. Upon judicial review of an action taken by an administrative agency, the appellant has the burden of proving that the conclusions of such agency violate § 15.0425.

5. The board in this case, having received reports from the Pollution Control Authority and the director of Waters, Soils and Minerals, is not required by law to be guided solely by such reports, but must consider the evidence in its entirety as a basis for its action. Having reviewed the entire record, we are convinced that there was a reasonable basis for the board's action.

Holmes Eustis Kircher & Graven, and David L. Graven, Minneapolis, for appellants.

Warren Spannaus, Atty. Gen., Richard B. Allyn, Sol. Gen., Stephen Shakman, Sp. Asst. Atty. Gen., St. Paul, for State, Water Res. Bd.

Arthur, Chapman & Michaelson, and Lindsay G. Arthur, Jr., Minneapolis, for respondents.

Heard before MacLAUGHLIN, SCOTT and STAHLER, JJ., and considered and decided by the court en banc.

THOMAS J. STAHLER, Justice. ^*

Appellants, Donald H. Markwardt and Marvin Sommers, property owners in the affected area, petitioned district court for review pursuant to Minn.St. 15.0424 of an order of the Minnesota Water Resources Board (board) establishing the Clearwater River Watershed District (watershed district). The petitioners in the matter of the establishment of the watershed district were allowed to intervene in the present action. ¹ This is an appeal from a judgment of the district court affirming the order of the board. We affirm.

On July 3, 1974, a petition requesting the creation of a watershed district for the Clearwater River system was filed with the board by the intervenors. The primary purpose of the proposed watershed was to control pollution of the Clearwater River system, which provides drainage of portions of Stearns, Wright, and Meeker Counties. Pursuant to Minn.St. 112.37, subd. 3(3), the director of the Division of Waters, Soils and Minerals (director) filed a preliminary report with the board on August 30, 1974, which recommended establishment of the watershed if "coordinated management will be impossible without the establishment of the district and * * * will be possible if the watershed district is established."

The board held public hearings on the matter on October 9, 1974, and November 25, 1974. Testimony introduced at these hearings established that a serious pollution problem existed, a fact which appellants do not contest. Dr. Keith Knutson, an aquatic biologist, testified at length regarding the poor water quality in the area of the proposed watershed, explaining the condition was due most significantly to inadequately treated sewage, but other factors such as industrial waste, runoff from agricultural lands, and feed lots contributed to the pollution. Knutson and others testified regarding the difficulties encountered by the existing governmental units in dealing with the water problem, particularly the difficulty in obtaining financing. The evidence also included a Pollution Control Agency (PCA) report prepared in 1971. The PCA report recommended that local governments take steps to alleviate the pollution problem in the Clearwater River system and that "(c)onsideration should be given to formation of a local organization, such as a watershed district, to be responsible for the restoration and maintenance of the Fairhaven Dam." This dam was rebuilt through the efforts of local citizens after the PCA report was issued but before the board's hearings on establishing a watershed district. Opponents of the watershed district introduced testimony to the effect that the sewage treatment problem could be cured by existing local governments through adequate chlorination; that a creamery in Watkins, which was a possible source of industrial pollution, was in the process of improving its disposal system; and that other local government efforts in the nature of zoning and septic tank regulations were being undertaken.

On April 9, 1975, the board issued an order establishing the watershed district, together with findings of fact and conclusions of law in support thereof. The board found that current water problems in the Clearwater River system were the cause of loss of recreational uses, erosion, sedimentation, poor water quality, and attendant public health problems as detailed in the testimony of Knutson and the 1971 report of the PCA. The board also found that coordinated public water management was lacking in the area at Federal, state, and local levels and concluded that the public welfare, the public interest, and the purposes of the Minnesota Watershed Act, Minn.St. c. 112, would be subserved by the establishment of the proposed watershed district.

1. Appellants' first argument is that the board lacked statutory authority to create a watershed district for the sole purpose of pollution control. Minn.St. 112.36 provides in part:

"A watershed district may be established for any or all of the following conservation purposes:

"(1) Control or alleviation of damage by flood waters;

"(2) Improvement of stream channels * * *;

"(3) Reclaiming or filling wet and overflowed lands;

"(4) Providing water supply for irrigation;

"(5) Regulating the flow of streams * * *;

"(6) Diverting or changing watercourses * * *;

"(7) Providing and conserving water supply for domestic, industrial, recreational, agricultural, or other public use;

"(8) Providing for sanitation and public health and regulating the use of streams, ditches, or watercourses for the purpose of disposing of waste;

"(9) Repair, improve, relocate, modify, consolidate, and abandon, in whole or in part, drainage systems * * *;

"(10) Imposition of preventive or remedial measures for the control or alleviation of land and soil erosion and siltation of watercourses or bodies of water affected thereby "(11) Regulating improvements by riparian landowners of the beds, banks, and shores of lakes, streams, and marshes by permit or otherwise in order to preserve the same for beneficial use."

The statute explicitly states that a watershed district may be established for any of the enumerated purposes. Cf. Adelman v. Onischuk, 271 Minn. 216, 135 N.W.2d 670, certiorari denied, 382 U.S. 108, 86 S.Ct. 257, 15 L.Ed.2d 192 (1965), which involved a watershed established for the purpose of maintaining a barge channel. If any one of the purposes enumerated in § 112.36 will support the creation of this watershed district, the board did not exceed its statutory authority.

Substantial evidence introduced at the hearings indicated that the pollution to the Clearwater River system was caused largely by inadequately treated sewage. Improving sewage treatment falls directly within § 112.36(8). It seems clear to us that this subsection alone would support the creation of the district....